UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4387

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARY EUGENE BUNCHE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, Chief

District Judge. (CR-03-233-BO)

Submitted: October 19, 2005 Decided: November 22, 2005

Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Gary Eugene Bunche appeals his jury conviction of

possession of a firearm by a convicted felon in violation of 18

U.S.C. §§ 922(g)(1), 924 (2000) and resulting sentence as an armed

career criminal to 210 months in prison followed by five years of

supervised release. We find no reversible error and affirm

Bunche’s conviction and sentence.

Bunche first contends the district court committed

reversible error by permitting the Government to question a defense

witness in cross examination as to her knowledge of the facts

associated with Bunche’s 1999 felony conviction for possessing a

weapon. Although Bunche stipulated he had been convicted in 1999

of a felony offense punishable by imprisonment for a term exceeding

one year, and that the firearm found by police after they observed

Bunche throwing an object while running away from them had traveled

in interstate commerce, he pled not guilty to possessing the

weapon. The district court found the witness’ testimony regarding

Bunche’s living arrangements, activities, and demeanor during the

weekend prior to his arrest was character evidence and allowed the

Government to rebut the testimony by inquiry on cross examination

pursuant to Fed. R. Evid. 404(a)(1). 

“A district court’s evidentiary rulings are entitled to

substantial deference and will not be reversed absent a clear abuse

of discretion.” United States v. Moore, 27 F.3d 969, 974 (4th Cir.
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1994). “We will find that discretion to have been abused only when

the district court acted ‘arbitrarily or irrationally.’” Id.

(quoting United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.

1993)). “Evidence of a defendant’s character, while not generally

admissible, may be offered by the government to rebut the character

evidence introduced by the accused.” Id. at 974 (citing Fed. R.

Evid. 404(a)(1)). When a defendant “opens the door” by soliciting

favorable opinions about his character, the district court may

properly allow the government to rebut the offered testimony by

inquiry on cross examination into relevant instances of conduct.

Id. (citing Fed. R. Evid. 405(a)).

Any error “that does not affect substantial rights must

be disregarded.” Fed. R. Crim. P. 52(a); see also Fed. R. Evid.

103(a). Nonconstitutional error is harmless when the court “can

say ‘with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.’” United States v.

Nyman, 649 F.2d 208, 211-12 (4th Cir. 1980) (quoting Kotteakos v.

United States, 328 U.S. 750, 765 (1946)). Where the trial judge

has given a limiting instruction on the use of evidence, the fear

that the jury may improperly use the evidence subsides. United

States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997). 

We conclude that any possible error was harmless. With

Bunche’s concurrence, the district court gave a limiting
*Bunche was previously convicted of seven counts of robbery

with a dangerous weapon and three counts of second degree

kidnapping committed on six different occasions.

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instruction to the jury that the Government’s questions were not

substantive evidence, and the Government presented no other

evidence or argument regarding the prior conviction.

Bunche next contends the district court engaged in

unconstitutional fact finding by sentencing him as an armed career

criminal. However, he does not dispute that he has at least three

prior convictions qualifying as “violent felonies” and that they

were “committed on occasions different from one another.”*

 See 18

U.S.C. § 924(e) (2000). Because the facts necessary to support

both the fifteen-year statutory minimum prison sentence under 18

U.S.C. § 924(e) and the enhancement under U.S. Sentencing

Guidelines Manual § 4B1.4(b)(3)(B) (2003) “inhere in the fact of

conviction,” there is no error. See United States v. Thompson, 421

F.3d 278, 283, 287 & n.5 (4th Cir. 2005).

Accordingly, we affirm Bunche’s conviction and sentence.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED